First, what the firm may not think is a disability could well be one.
Second, the ADA applies to access to public places such as stores and restaurants – and law offices. And while it “has a noble purpose,” along the way “it’s been hijacked by a subset of plaintiffs who have made it their life’s work to target as many public accommodations as possible for monetary gain,” says James S. O’brien, Jr., a partner with Pryor Cashman in New York.
Watch out.
You mean that’s a disability?
The ADA can get confusing for employers, because there’s no bright line on what constitutes a disability, O’Brien says.
And for that reason, when somebody asks for an accommodation for a provision for any inability, the safest response is to consider the problem a disability and provide the accommodation.
Some disabilities come as a surprise.
One, for example, is morbid obesity, which is extreme obesity, usually defined as a Body Mass Index of 40 or more.
A case decided last summer involved a man who weighed in excess of 600 pounds. He worked at a manufacturing company where part of his time was spent driving a forklift. The forklift required wearing a seat belt, and the belt wouldn’t go around him, so he asked for a seatbelt extender. The company, however, didn’t supply the extender but terminated him instead, saying he could no longer do his job because of his weight.
The man sued for disability discrimination, the court found that morbid obesity does indeed fall under the definition of a disability, and the company had to pay $55,000 in damages.
In a similar case, a woman who weighed more than 400 pounds was fired from a child-care job on the grounds that she was too obese to perform CPR in an emergency. Again, obesity was determined to be a disability, and the employer had to pay $125,000.
Some far-fetched request
The ADA is expanding further to cover more mental issues as disabilities.
“There are a lot of syndromes that never used to exist but do now,” O’Brien says. Post traumatic stress disorder is an example.
And employers are getting hit with some surprising requests for accommodations such as “I need to come in late because I have restless legs syndrome and can’t sleep.”
In one situation, an employee even showed up with a note from an out-of-state physician saying the woman was nervous and had a hard time functioning and that the doctor had prescribed that she bring a dog to work.
That accommodation meant the employer has to figure out a way for someone to walk the dog during the day.
Requests like that may sound absurd, he says, “but the firm has to show that it is being reasonable.” The administrator “can’t just say no” to an accommodation request, even when it seems outlandish. The courts want to see that the employer made at least some effort to work with the employee to come up a with a reasonable solution.
He also points out that accommodations have to be made for current employees as well as new ones. If an employee breaks a hip and becomes disabled the office needs to help out.
If the disability is temporary, it might be possible for co-workers to carry the wheelchair up steps. But if it’s permanent, the chair-carrying is not reasonable, and the office needs to get a ramp.
Any employee is entitled to keep the job as long as the performance requirements are met and accommodation is reasonable for the employer.
Keep silent on the disability
Along with viewing every limitation as a potential disability, never mention the problem as a contributing factor to any action against the employee. O’Brien cautions. Never say, for example, “you are too heavy to do this job.” Do so, and the door is wide open to a complaint of “you fired me because of my disability.”
Whenever an action is taken against an employee, mention performance only, or “you are being disciplined because you are not performing.”
What’s more, there has to be “a straightforward neutral record” of the action with never a mention of the disability – or any other discriminatory factor.
More still, make it clear to the supervisors that what anybody in management says “can come back to bite the office.” Take it to the bank that a remark such as “it takes her 30 minutes to make it across the room” will reappear in a discrimination claim.
Hire with two blind eyes
The same theory applies to hiring.
An employer “is entitled to hire the best candidate for the job,” O’Brien says.
But what an employer cannot do is not hire somebody because of a disability
In hiring a receptionist, for example, the selection “has to be all skills-based.” It can’t be based even partly on how the office wants that person to look
The way to keep safe is to be “proper and formal” in conducting the interviews. If some one mentions a factor that could in any way be considered a disability, respond with “we are blind to disabilities in this office, and we will make accommodations for our employees as required by the ADA.” And don’t talk about the disability.
Make that clear, “and it’s tough for a litigant to prove discrimination.”
Don’t cry undue hardship
The ADA doesn’t ask for the moon. It requires only that an employer provide a reasonable accommodation. And reasonable means it doesn’t create undue hardship for the business.
Thus, O’Brien’s advice is “think twice before going down the undue hardship road.” Unless it’s “a black-and-white issue such as building a new elevator in a small building,” the requested accommodation will likely pass muster with the ADA.
What’s more, the fight will not be pleasant. All the plaintiff has to say is” show me your general ledger,” and it becomes clear whether the request really does pose an undue hardship. If the firm is profitable, an accommodation such as putting in the ramp or adding in new computer to help some one who is vision impaired is going to be viewed as reasonable. And the firm will be found guilty of ADA discrimination for not proving it.
Added to that, he says, when a case gets to that point, the discovery is intrusive, and the legal costs get high. Stay out of it if at all possible.
What about the argument that the accommodation will adversely affect the business?
It’s rare such would happen. An example might be a business that uses its staircase for weddings and fashion shows where people promenade down the steps. Adding a lift to that staircase could possibly injure the business.
But “that’s not a good way to go,” Rarely does an undue hardship argument hold up.
$500 fine; $$$ attorney’s fees
The second element of the ADA to watch is its application to access to private entities that are open to the public. And that includes legal offices.
Make sure the office meets ADA standards for access, O’Brien says. The disabled person “is no different from John Q. Public. He is entitled to access to the business.”
And there are some people who seek out ADA violations in public places, many times as a means of ensuring complete access for disabled persons – and many times for questionable reasons.
For example, one New York man, Zoltan Hirsch, who lost both legs in a traffic accident has brought more than 100 ADA claims against public places.
The most he is entitled to in each matter as a plaintiff is $500, because the ADA does not impose damages for violations.
But that’s not the case for his attorneys.
The ADA allows for reasonable attorney’s fees. And some attorneys are making a living off those fees.
The action itself is usually just a matter of the attorney telling the employer “you have these violations.” And the employer responds with the “we will address all of them.” And there’s not much complaint about it because in most cases, the accommodations are minor – perhaps adding a ramp or changing a round doorknob to a lever handle.
But then comes the bomb. The attorney says, “okay now we have to talk about my fees.” And those fees can run to thousands of dollars “without the lawyer’s doing anything.”
ADA representation “is not rocket science,” he says. Once an attorney has done one case, it’s easy to repeat the process over and over. And when there’s “an ambitious client” who files a large number of claims and who is represented by the same attorney for each one, the money mounts up. And it’s the unsuspecting office that has to pay the fees.